More by Glenn Greenwald on free speech

Glenn Greenwald is excoriating the hate speech laws of Canada. It turns out that an official in a Canadian university in which an American, one Ms. Coulter, has been invited to speak has sent that speaker a letter notifying her that expressing certain types of ideas while in Canada would be against the Canadian law.

As has been the case with his post dealing with the court decision regarding regulations of election campaigns, Greenwald’s argument weaves several related but distinct claims – of varying validity – into a single narrative. Unpacking the argument, I identify several claims. The first three seem almost gratuitous:

• The official’s letter is “threatening”.
• The official is anointing himself as the arbiter of what is and is not sufficiently “civilized discussion”.
• For the two reasons above, the letter is “hateful” and is therefore itself a violation of the hate speech laws.

Those three claims can be easily dismissed. The letter itself is informative rather than threatening. It does not indicate that the official or anyone else in the university would try to instigate a criminal prosecution against the speaker. The official to some limited extent expresses some opinion that certain ideas are uncivilized, but so do many people, more or less convincingly, in countries with or without hate speech laws. In this particular case, the official seems to indicate that in his opinion the speech outlawed by his country’s laws is uncivilized. This is hardly outrageous, hateful, or even unusual or controversial. That is his opinion and nothing more. Whether a certain idea is illegal under Canadian law is decided on grounds that are not directly affected by that opinion.

The more substantial points are Greenwald’s arguments for the inadvisability of criminalizing certain ideas:

• “The hubris required to believe that you can declare certain views so objectively hateful that they should be criminalized is astronomical; in so many eras, views that were most scorned by majorities ended up emerging as truth,”
• “I’ll never understand how people want to vest in the Government the power to criminalize particular viewpoints it dislikes,”
• “[I] will never understand the view that it’s better to try to suppress adverse beliefs than to air them,”
• “[I] will especially never understand people’s failure to realize that endorsing this power will, one day, very likely result in their own views being criminalized when their political enemies (rather than allies) are empowered.”

And, in the comments,

• “[If the majority can suppress certain ideas then] all opinions held by a minority could be criminalized. Who would endorse a standard like that?”

The first argument is weak. Many laws in the past prohibited various activities that over time became to be seen as legitimate. That doesn’t mean that laws in general are a bad idea. Current laws outlaw various activities that were considered legitimate in the past – in many cases this is considered progress. In theory, the case for prohibition and legalization of speech may be the same.

The second point suffers flaw similar to that of the first point. The mechanism of suppression of ideas by legislation is wielded by the government. Governments often do not represent the interests of the people and this tool therefore can be potentially used by the government to oppress the people. However, again, this can be said about any tool of government. Therefore, if accepted, this argument would indicate that the government should be given no tools. Again, one must argue how suppression of ideas is different from other tools of government (say, enforcement of public safety laws or environmental laws).

The third point has some potential force. It certainly sounds plausible that in many cases “airing” ideas serves even those who disagree with those ideas. It may, however, be difficult to make the case that this is always the case. It is not clear, for example, how “airing” the idea that Muslims should be discriminated against serves Muslims or any non-bigoted person. It is possible that the case can be made – but Greenwald neither makes that case nor indicates whether a such a case was made, by whom or in what venue. Greenwald seems to see the advantage of “airing” over suppression as being obvious – it is not.

The fourth point is that the suppression of one idea – an idea rejected by a certain person – makes it more likely, supposedly, through some unspecified mechanism, that other ideas would be suppressed, some of which ideas may turn out to be ideas that the person would like to see expressed. This point is similar to the first one. Once some ideas are suppressed, true, or virtuous, ideas may come to be suppressed. The difference from the first point is that here it is not assumed that a person or society may change their mind about a certain idea, but that together with some false ideas, that may be suppressed without any negative consequences, some other, good, ideas would be suppressed. Again, this argument, by itself, is weak, since if valid it would also indicate no good laws should be legislated since the same mechanism could lead to the legislation of bad laws.

Finally, the fifth point is that, according to Greenwald, if the possibility of the suppression of ideas is accepted, any idea that is rejected by a majority could theoretically be suppressed, which paints an unpleasant picture of society. But again, this argument is too broad to be valid. Laws are often about suppressing certain activities. One might as well argue that laws should not be acceptable since any activity that is rejected by a majority could theoretically be suppressed.

Thus, none of the four points, as presented, makes a good case for not suppressing certain ideas. The missing element here is an explication of what the value of free expression of ideas is. Once such an explanation is made it would be possible to argue that the special character of this activity is such that legislating against it is inherently worse than legislating against other types of activities (murder, pollution, etc.)

Greenwald does provide such an explanation, albeit briefly, in his first update. He quotes Noam Chomsky saying: “In other dimensions, the U.S. is very free. For example, freedom of speech is protected in the United States to an extent that is unique in the world.” Greenwald then says:

That’s the critical point:  as long as the State is absolutely barred from criminalizing political views, then any change remains possible because citizens are free to communicate with and persuade one another and express their political opinions without being threatened by the Government with criminal sanctions[.]

I will consider this explanation – its merits and shortcomings – next. It is important to realize, however, that it is this matter – the special properties of speech as opposed to other types of behavior – upon which the entire case stands.

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